M/S Chetana vs Smt T V Susheelamma
2022 Latest Caselaw 2874 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 21ST DAY OF FEBRUARY 2022

                      BEFORE

       THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

  WRIT PETITION NO.19377 OF 2016 (GM-CPC)

BETWEEN:

M/S CHETANA
A REGISTERED WOMEN VOLUNTARY
ORGANISATION BY CENTRAL SOCIAL WELFARE BOARD,
NO.114, RATHNA VILAS ROAD
BASAVANAGUDI, BANGALORE-560004
REPRESENTED BY SEC.
SMT. INDUMATHI SIDDEGOWDA
W/O SRI. SIDDEGOWDA
AGED ABOUT 48 YEARS.
                                    ...PETITIONER
(BY SRI. HEGDE V S, ADVOCATE)

AND:

       SMT. T V SUSHEELAMMA
       W/O SRI. D.CHIKKANNA
       (THIRD DEFENDANT IN O.S NO.2103 OF 1982)
       SINCE DECEASED REPRESENTED BY HER LEGAL
       REPRESENTATIVES

1.     DR. GUNSHEKAR
       S/O D.CHIKKANNA
       AGED ABOUT 55 YEARS
       NO.2452, IV CROSS
       MARI GOWDA EXTENSION, MANDYA.
                          2




2.   VIDYASHEKAR
     S/O D.CHIKKANNA
     AGED ABOUT 51 YEARS
     NO.2452, IV CROSS
     MARI GOWDA EXTENSION.
     MANDYA - 571 401.

     T.V. KRISHNAPPA
     SINCE DECEASED
     REPRESENTED BY LRS
     (PLANTIFF IN O.S.NO.2103 OF 1982)

3.   SMT. BHAGYA KRISHNAPPA
     W/O LATE T.V.KRISHNAPPA
     RESIDENT OF B.M.ROAD,
     KUVEMPU NAGAR, CHANNAPATNA TOWN
     RAMANAGARA DISTRICT

4.   SRI.T.K. YOGESH
     S/O LATE T.V. KRISHNAPPA
     MAJOR
     RESIDENT OF B.M.ROAD,
     KUVEMPU NAGAR, CHANNAPATNA TOWN
     RAMANAGARA DISTRICT

5.   SMT. T.K. RASHMI
     W/O ANOOP ANANTH
     D/O LATE T.V.KRISHNAPPA
     MAJOR
     RESIDENT OF B.M.ROAD,
     KUVEMPU NAGAR, CHANNAPATNA TOWNS
     RAMANAGARA DISTRICT

6.   SMT. T.K.REKHA
     W/O SRI. R.CHANDRASHEKAR
     D/O T.V. KRISHNAPPA
     MAJOR, RESIDNG AT NO.55,
     29TH MAIN, 1ST CROSS
                            3




       1ST STAGE, B.T.M.LAYOUT
       BANGALORE-560068

       T.V.RAMANNA
       SINCE DEAD REPESENTED BY LRS
       (1ST DEFENDANT IN O.S.NO.2103/82)

7.     SMT. VIJAYALAKSHMI RAMANNA
       W/O T.V.RAMANNA
       AGE 72 YEARS,
       RESIDING AT
       NO.114, BHAGYA BHAVANA,
       KRISHNA RAJENDRA ROAD
       BANGALORE-560004

8.     RAGHUNANDAN RAMANNA
       S/O LATE T.V.RAMANNA
       AGE 48 YEARS,
       RESIDING AT
       NO.114, BHAGYA BHAVANA,
       KRISHNA RAJENDRA ROAD
       BANGALORE-560004

9.     DEVANANDAN RAMANNA
       S/O LATE T.V.RAMANNA
       AGE 42 YEARS,
       RESIDING AT
       NO.114, BHAGYA BHAVANA,
       KRISHNA RAJENDRA ROAD
       BANGALORE-560004

10 .   SMT.T.V. BHAGYAMMA
       AGED ABOUT 68 YEARS,
       W/O SRI. NANJUNDAIAH
       B.M.ROAD EXTENSION
       CHENNAPATNA
       BANGALORE DISTRICT
       (FOURTH DEFENDANCT INO.S.NO.2103 OF 1982)
                            4




11 .   SRI.MAHESH
       AGED ABOUT 50YEARS,
       S/O SRI. M. VISHAKANTAIAH
       NO.7, 1ST FLOOR, APOORVA APRTS,
       DODDABOMMASANDRA
       VIDYARANYAPURA POST
       BANGALORES
       (6 TO DEFENDANT IN O.S.NO.2103 OF 1982)
                                      ....RESPONDENTS

(BY SRI. M L GOWDA, ADVOCATE FOR R1, R4 & R11
    SRI. R.S. PRASANNA KUMAR, ADVOCATE FOR R6
    SRI. K.R. KRISHNA MURTHY, ADVOCATE FOR R8
    VIDE ORDER DATED 25.1.2019 NOTICE T R3 AND R5
    HELD SUFFICIENT
    R2, R7,R9 AND R10 ARE SERVED)

      THIS WRIT PETITION IS FILED UNDER ARTICLE 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
CALL FOR THE RECORDS AND QUASH THE ORDER DATED
30.3.2016 DISMISSING I.A.NO.XV UNDER ORDER I RULE
10 R/W SECTION 151 OF THE CODE OF CIVIL PROCEDURE
IN FDP NO.44/2003, ON THE FILE OF XXXI A.C.C.J.
BANGALORE VIDE ANNEX-L.

     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:

                         ORDER

The petitioner aggrieved by the order dated

22.03.2016, passed on I.A.No.15 in FDP No.44/2003

by the XXXI Addl. ACCJ, Bengaluru has filed the

present writ petition.

2. Brief facts leading rise to filing of this writ

petition are as under:

One T.V.Krishnappa filed a suit for partition and

separate possession against the respondents in

O.S.No.2103/1982. The said suit came to be decreed

vide judgment and preliminary decree dated

07.11.2002. Original defendant No.1 in the said suit

aggrieved by the judgment and preliminary decree,

preferred an appeal in RFA No.403/2003 before this

Court. This Court vide judgment and decree dated

01.07.2010, dismissed the appeal. Thereafter, FDP

proceedings are initiated by respondents No.1 and 2 in

FDP No.44/2003. In the said FDP proceedings, the

petitioner filed an application to implead him as

proposed defendant No.5. In support of the

application, the petitioner filed an affidavit contending

that the proposed defendant is a registered Women

Voluntary Organization sponsored by the Central

Social Welfare Board. It is contended that one

V.Venkatappa, the absolute owner of the piece and

parcel of the property of land and building No.114,

New No.24, entered into an agreement/memorandum

of understanding dated 26.11.1979, agreeing to sell

the aforesaid property in favour of petitioner. It is

contended that the petitioner requested V.Venkatappa

to execute a registered sale deed during his lifetime,

but due to non-possibility to immediately bifurcate the

entire property, could not execute a registered sale

deed. Meanwhile, V.Venkatappa died leaving behind

the respondents along with other legal heirs. It is

contended that the petitioner filed a suit in O.S.

No.26944/2011 for the relief of specific performance

of contract, which is pending for consideration. In

view of the same, if any order is passed in the FDP

proceedings, his right will be infringed. Hence it is

stated that the petitioner is a proper and necessary

party. Hence prayed to allow the application.

Per contra, respondents filed objections to the

said application denying the averments made in the

application. It is contended that the petitioner has

filed a suit in O.S.No.26944/2011 on the basis of

concocted agreement dated 26.11.1979. It is further

contended that the petitioner is a stranger to the suit

schedule property and the petitioner is not a party in

O.S.No.2103/1982 or in the appeal in RFA

No.403/2003 or in any of the proceedings of the suit

schedule property. It is further contended that the

alleged agreement/MOU is claimed to be executed on

26.11.1979 and the suit in O.S.No.26944/2011 is filed

after 36 years from the date of alleged agreement/

MOU. It is further contended that the suit filed by the

petitioner is barred by limitation. Hence prayed to

reject the application.

The Trial Court after hearing the parties,

rejected the application filed by the petitioner. Hence

this writ petition.

3. Heard learned counsel for petitioner and

learned counsel for respondents.

4. Learned counsel for the petitioner submits

that the petitioner is a proper and necessary party in

the said suit as the portion of the suit schedule

property is the subject-matter of agreement of

sale/MOU dated 26.11.1979 and is also subject-matter

of FDP proceedings. He further submits that the Trial

Court has committed an error in rejecting the said

application. He further submits that the observation

made in the impugned order that suit in O.S.No.

26944/2011 filed by the petitioner after 32 years from

the date of agreement of sale/MOU, is highly

misplaced and unwarranted. In order to buttress his

argument, he has placed reliance on the following

citations:

1. 1998 SCC Online KAR 275 in the case of Smt. Ashwathamma vs. H.M.Vijayaraghava

2. (2007) 10 SCC 719 in the case of Dhanalakshmi & Ors. Vs. P. Mohan & Ors.

3. (1983) 1 SCC 18 in the case of Khemchand Shankar Choudhari & Anr. Vs. Vishnu Hari Pater and Ors.

Hence, on these grounds, he prays to allow the writ

petition.

5. Per contra, learned counsel for the

respondents submits that the petitioner is claiming a

right on the basis of alleged agreement of sale. He

further submits that the petitioner will not get a right

on the basis of alleged agreement of sale. He further

submits that the suit is one for partition and separate

possession and same was filed in the year 1982 and

the parties are not getting the fruits of the decree

passed in the said suit. He further submits that

petitioner is neither necessary nor a proper party to

the suit. He further submits that if the petitioner has

got any right, the petitioner can seek independent

remedy and he further submits that the petitioner has

already availed the said remedy by filing a suit for

specific performance of contract. He further submits

that the Trial Court is justified in rejecting the

application filed by the petitioner. Hence, on these

grounds, he prays to dismiss the writ petition.

6. Perused the records and considered the

submissions made by learned counsel for the parties.

7. It is not in dispute that one T.V.Krishnappa

filed a suit in O.S.No.2103/1982 for partition and

separate possession against the respondents. The

said suit came to be decreed vide judgment and

preliminary decree dated 07.11.2002. Defendant

No.1 in the said suit filed an appeal in RFA

No.403/2003 before this Court. This Court vide

judgment and decree dated 31.05.2010, dismissed

the appeal. The respondents No.1 and 2 filed a final

decree proceedings in FDP No.44/2003. In the said

FDP proceedings, the petitioner has filed an

application to implead as defendant No.5. The

petitioner is claiming a right based on alleged

agreement of sale/MOU dated 26.11.1979. The

petitioner filed a suit in O.S.No.26944/2011 for

specific performance of contract. If the petitioner has

any right over the suit schedule property, the

petitioner has to seek an independent relief, but not in

a suit for partition and separate possession filed by

the plaintiff therein. The petitioner has already

availed a remedy by filing a suit for specific

performance. In order to consider whether the

petitioner is a proper and necessary party, two tests

are to be satisfied for determining the question who is

a necessary party: (1) there must be a right to some

relief against such party in respect of controversies

involved in the proceedings; or (2) no effective decree

can be passed in the absence of such a party. In the

present case, the petitioner is yet to establish his right

in respect of the alleged agreement of sale/MOU

involved in O.S.No.26944/2011. Further, the

petitioner has failed to establish that no effective

decree can be passed in the absence of the petitioner.

The judgments relied upon by the learned counsel for

petitioner are not applicable to the present case in

hand. In the said judgments, the impleading

applicants are the purchasers who were claiming right

under the registered sale deed executed in their

favour. In the present case, as observed above, no

such sale deed came to be executed in favour of the

petitioner. The petitioner has not acquired any right

over the suit schedule property. Petitioner's right is

yet to be adjudicated in the suit filed by him. The

Trial Court is justified in rejecting the application filed

by the petitioner. The Trial Court while dismissing the

application has recorded a finding that the suit is filed

in the year 2011 i.e., after lapse of 32 years. The said

finding recorded by the Trial Court is unwarranted.

The Trial Court shall dispose of the suit in

O.S.No.26944/2011 independently, without being

influenced by the observation made in the impugned

order and also in this order.

8. In view of the above discussion, the writ

petition is dismissed.

SD/-

JUDGE

RD